The Volokh Conspiracy

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Volokh Conspiracy

Short Circuit: A roundup of recent federal court decisions


(Here is the latest edition of the Institute for Justice's weekly Short Circuit newsletter, written by John Ross.)

New on the podcast: Special guest Clark Neily, vice president of criminal justice at the Cato Institute, talks police shootings, detaining a witness to a police shooting, and denying a pre-trial detainee access to a judge for 96 days.

  • While awaiting trial for hiring undercover cop posing as hitman to kill his wife, Chelmsford, Mass., financial planner hires hitman to kill his wife and the cop. Shoot! Second hitman also a cop. First Circuit: Conviction affirmed. But, re-do the sentencing; prosecutors were overzealous in counting how many times he broke the murder-for-hire law.
  • Mother sues over her son's suicide in a New Jersey prison; her lawyer finds out through discovery that prison guard told her son to kill himself after her son asked for psych help. But the lawyer misses deadline to amend the complaint with the case-changing info about the guard. District court: Too bad. Case dismissed. Third Circuit: She can amend the complaint.
  • Citizen activist (whose sleuthing leads to the police chief pleading guilty to stealing public funds) declines repeated requests from Timberlake, Ohio, mayor to stop emailing his personal account, is charged with harassment. (She's acquitted.) Retaliation for protected speech? The Sixth Circuit says no.
  • Woman bares her (painted) breasts to protest Chicago's ban on public display of the same, is fined. Violation of equal protection because men get to bare their chests? An unconstitutional restriction on expressive activity? Indeed not, says the Seventh Circuit, "the two sexes are not fungible," so the government can treat female nudity differently. And passersby wouldn't have known what she intended to express if she hadn't also been handing out literature. Dissent: By that logic, wearing a black armband is expression but wearing a black armband and shouting "No more war!" is not. This should go to trial.
  • Man cries tears of contrition on stand for his role in Crandon, Wis., murder. But wait! He also allegedly boasts to a cellmate that he should get a medal for snuffing out the victim. Seventh Circuit: Which prosecutors should absolutely have revealed to counsel for a second man convicted of the murder (thanks in part to the first man's testimony). But no need for a new trial; there was sufficient untainted inculpatory evidence.
  • Activists damage property, release 2000 minks from Morris, Ill., farm, plead guilty to violating the Animal Enterprise Terrorism Act. Activists: The law is unconstitutional-in part because we shouldn't be labeled "terrorists" for committing a non-violent property crime. Seventh Circuit: Yeah, but other people have done this kind of thing violently; there's a rational basis for the law's title.
  • Allegation: Villa Park, Ill., police arrest, charge man for failing to register as a sex offender, though they know he's not required to do so, and withhold exculpatory evidence. Seventh Circuit: Get this guy a lawyer.
  • The Indianapolis Land Bank, a public agency, helps city dispose of vacant, tax-delinquent homes. But public official turns Land Bank into his private piggy bank by fraudulently selling homes. Seventh Circuit: No reason to disturb the official's conviction or his nine-year sentence.
  • Federal agents investigating company that may have ripped off the VA want to interview eight potentially percipient reviewers who criticized the company online. Must Glassdoor, a platform that allows employees to anonymously review employers, reveal the reviewers' identities to the gov't? Yes, says the Ninth Circuit; there is no protected right to anonymous speech here.
  • One can be convicted of first-degree sex abuse in Alabama whether or not the crime was a violent one. Which means this defendant, whose crime was violent, doesn't get a sentencing enhancement, holds a displeased Eleventh Circuit panel after a mandatory jaunt down the rabbit hole.
  • Sitting en banc for the first time in its nearly 40-year history, the Foreign Intelligence Surveillance Court holds that the ACLU and a Yale Law School clinic have standing to seek declassification of portions of FISA rulings that discuss the legal basis for the bulk collection of Americans' Internet search histories and other data. Dissent: There is no First Amendment right of access here, and plaintiffs aren't going to win on the merits.
  • And in en banc news, the Tenth Circuit will not reconsider its decision invalidating a state murder conviction because the defendant, an Indian, committed it in Indian country (which includes most of present-day Oklahoma and much of Tulsa) and thus should have been tried in federal court. J. Tymkovich: the Supreme Court should review this.

Friends, we just received word that IJ litigator Erica Smith's article on the unconstitutionality of excluding religious options from educational choice programs is Federalist Society Review's most-read article this year. Huzzah! Click here to read about Blaine Amendments, which many states enacted in the 1800s to discriminate against Catholics, and which today remain the biggest obstacle to educational choice.